Panhandling Regs Passed Amid Promises Of Litigation – March 24, 2010

ARCATA – The City of Arcata took the final step in attempting to curb the behavior of panhandlers last Wednesday, March 17 – a step critics call a violation of people’s free speech.

The council passed an ordinance by a 3-2 vote which takes effect April 16, 30 days after Wednesday’s meeting. The ordinance bans aggressive panhandling citywide and defines areas where all solicitation would be prohibited. Those areas are within 20 feet of an entrance to businesses, ATMs, street intersections and bus stops. Other areas where solicitation will be prohibited include pedestrian overpasses, like the one connecting Northtown to Humboldt State.

The ordinance’s City Council supporters said it is meant to stop a problem of rude and aggressive behavior on the street. In February, the council introduced the ordinance with a four to one vote, councilmembers Mark Wheetley, Susan Ornelas, Michael Winkler and Alex Stillman voted to introduce it, and Councilmember Shane Brinton dissented.

Last week, Stillman, Wheetley and Winkler voted to pass the ordinance and Brinton and Ornelas voted against it. Brinton has consistently opposed the ordinance, while Ornelas expressed doubts at the last minute about the inclusion of non-profits in the solicitation ban.

“I’ve made every criticism of the ordinance I could possibly make,” Brinton said. “Now it’s time to see if the ordinance works.”

Brinton said the ordinance restricts freedom of speech, is vague and difficult to understand, and will not work.

He said there are real concerns about aggressive panhandling, and knows a solution needs to be found.

“I think there was broad support for addressing the problem,” he said. “I don’t think there was broad support for the ordinance.”

Brinton also disagrees with the assertion that the business community as a whole wants the ordinance.

“I don’t feel like there was a huge push from the business community,” he said.

The business community and the public want a solution to the problem, but Brinton doesn’t think the ordinance does that. He said the ordinance doesn’t fix anything and he doesn’t change his advice to the public.

“My message to the public is the same as it was before this was passed,” he said. “If you think your rights have been violated, call the police.”

Brinton is concerned that the ordinance itself violates people’s rights.

“I believe it violates the spirit of the constitution as I understand the constitution,” he said. “However there are a variety of rulings on both sides of the issue.”

Eric Hedstrom spoke at Wednesday’s council meeting about some of those rulings, and he is confident there will be a lawsuit against the City.

Hedstrom works for the Department of Health and Human Services as an information technology specialist. He is opposed to the ordinance because he said it is unconstitutional.

“This law prevents me from soliciting for charitable organizations and from soliciting to fight this ordinance within certain areas,” he said. “They took my rights away.”

He understands the City is trying to address a problem, and he doesn’t want to dismiss the problems people have had with panhandlers. But this ordinance isn’t the right solution he said. Instead, Hedstrom points out how people can still panhandle legally under the ordinance.

“The way they defined panhandling—it is an exchange of goods at that time and place,” he said. “If I ask you to give [something] to me at a different time or place I can still do it.”

At Wednesday’s council meeting, Hedstrom told the council his research suggested the language of the ordinance wouldn’t stand up to a legal challenge. He detailed a number of cases with similar language where cities have lost lawsuits, or had to change language of ordinances.

“Passing this law was a grave error on the City Council’s part,” he said. “If they enact this law, they will get sued.”

City Attorney Nancy Diamond, acknowledges the potential for a lawsuit, but is comfortable with the ordinance.

“Threats are made all the time,” she said. “But the City has never been sued upon enactment of an ordinance.”

She said often threats to sue are an emotional response when people disagree with the council’s decisions. She said it is impossible to know what will happen in the future or what challenges will come up.

“I think it’s been drafted in a way that is consistent with current judicial interpretation of the law,” she said. “Judicial opinions do change over time.”

She said without knowing a specific challenge that could come against the ordinance, she can’t say how it will hold up.

“Everybody’s having a fun time coming up with ‘what ifs’,” she said. “We’ll have to analyze them as they arise.”

Much of how the ordinance would be enforced would have to be done on a case by case basis, she explained. The example of Girl Scouts has been discussed, and Diamond said since they are selling something they are not covered by the ordinance. However that doesn’t mean a panhandler could bypass the law by selling something.

“I would have to look at that when it happens,” she said. “Is that a legitimate offer of sale or not?.”

She also noted that circumstances change, and if a challenge that hasn’t been thought of should develop, the council can take new action.

“If there is a challenge, the Council can decide at that time what they want to do,” she said.

However, based on the concerns raised so far, she said, “I remain confidant that the ordinance is OK.”

Councilmember Winkler said he trusts Diamond’s legal analysis that the ordinance is constitutional. He said the ordinance is necessary.

When Winkler was campaigning for office, he said people repeatedly told him they felt unsafe and uncomfortable downtown because of panhandlers.

“We need to say certain behavior isn’t acceptable,” he said.

“I know there are people who don’t agree with it,” Winkler said. “But the balance when I was talking to people while campaigning was very different.”

Winkler said the ordinance needed to cover areas of town that he describes as inherently coercive. Some of those areas are when you are at a bus stop, getting in or out of a car or leaving a business.

“I’ve been in those situations myself,” he said. “And I didn’t feel like I had a free choice.”

He described a situation where someone asked him for money at a bus stop. He told the person “no”, but it made him uncomfortable that the person was still hanging around.

For Winkler the discussion needs to also be about services for people in Arcata. He said services need to be available so panhandling isn’t the only option for people to meet their needs.

“I want to encourage people to get their lives together,” Winkler said. He said this law is something that encourages people to do that.

At Wednesday’s meeting all attending members of the public addressed the council asking them to not pass the ordinance as it is written.

Though the speakers who addressed the council spoke against it, one lady approached Mayor Stillman during the break and thanked her for the vote.